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The Georgia Supreme Court has issued an opinion approving the conclusion of the State Bar Formal Advisory Opinion Board concluding that it is impermissible for attorneys employed in the circuit public defender office to represent co-defendants when a single lawyer would be prohibited from doing so.

The court found that the board's opinion was correct in light of the constitutional right to conflict-free counsel and the construction of Georgia's ethical rule concerning imputed conflicts. (Mike Frisch)

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The issues covered by the Bar’s advisory opinion became even more complicated when decisions were made which allows a circuit public defender to transfer conflict cases to other circuit defender offices. Unfortunately, this amendment, which was offered for the purpose of saving “…the state a couple of million dollars;” will only exacerbate the problem which the bar’s advisory opinion is trying to resolve. The Supreme Court of Georgia must now decide whether or not to approve this opinion and thus make it mandatory in the State of Georgia. The Supreme Court should, and must, approve the State Bar’s Advisory opinion. In large part, the credibility of the public defender segment of Georgia’s criminal justice system depends upon that approval. In fact, the Official Code of Georgia Annotated provides that “[t]he circuit public defender shall establish a method for identifying conflicts of interest at the earliest possible opportunity.”

This legislation is entirely consistent with the American Bar Associations’ Standards for Criminal Justice which provides, in part, that

(b) Except for preliminary matters such as initial hearings or applications for bail, a lawyer or lawyers who are associated practice should not undertake to defend more than one defendant in the same criminal case if the duty to one of the defendants may conflict with the duty to another.

The current advisory opinion is also entirely consistent with the Georgia Rules of Professional Conduct. A comment to those Rules provides that

[15] Resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. . . . Where the conflict is such as clearly to call into question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with caution, however, for it can be misused as a technique of harassment.

The Georgia Rules of Professional Conduct also provide, in part, that “[A] lawyer who represents two or more clients shall not participate in making an aggregated settlement of the claims for or against the clients, nor in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all claims or pleas involved and the participate of each person in the settlement.” A lawyer who violates these Rules is subject to, at least, a public reprimand, and possibly, disbarment.

The legislation creating the public defender system in Georgia and the state bar’s advisory opinion is also consistent with The Judicial Conference of the United States which adopted a “Code of Conduct” for federal public defenders in 1996. This “Code of Conduct” provides an excellent guide for state public defenders and circuit public defender offices. The Judicial Conference’s Code of Conduct provides, in part, as follows:

[W]hen a defender employee knows that a conflict of interest may be presented in the performance of duties, the defender employee should promptly inform the federal public defender. The federal public defender, after determining that a conflict or the appearance of a conflict of interest exists, should take appropriate steps to restrict the defender employee’s performance of duties in such a matter so as to avoid a conflict or the appearance of a conflict of interest. If the conflict involves a conflict between or among clients, the federal public defender should consider withdrawal from one or more representations, or other appropriate remedial actions, as necessary to comply with applicable rules of professional conduct. A defender employee should observe any restrictions imposed by the federal public defender in this regard.

The State Bar of Georgia’s advisory opinion is, in essence, the answer to the question of whether public defenders and public defender offices are going to be held to the same standards as private attorneys. Those opposed to applying the same rules to public defenders, such as out-going State Senator Preston Smith, are content to divide the constitutional guarantees of equal protection into two classes, one type of justice for those who can afford to hire attorneys and one type for those who depend upon public defenders to defend their rights.

Conclusion
I posted the following comments concerning this prospective decision in February 2012!

The legislation which created the state-wide system of public defended provides that the Standards to be promulgated by the Standards Council shall include “(2) Standards prescribing minimum experience, training, and other qualifications for appointed counsel where a conflict of interest arises between the public defender and an indigent person.” The legislation also provides that “the circuit public defender shall establish a method for identifying conflicts of interest at the earliest possible opportunity.” The Council has attempted to pass this responsibility off to the dust bin under the rubric that it is too expensive to follow the rules of conflicts of interests which apply to every other lawyer in Georgia. Hopefully the Supreme Court of Georgia will follow precedent and reason and approve the State Bar of Georgia’s advisory opinion.